Anderson v. Chapman (a) is an authority for the plaintiff. That was an action against the defendant as a carrier by sea, charging damage to goods by improper stowage, and otherwise negligently taking care of and conveying them. The plaintiff failed to prove any negligence in respect of stowage, but proved a damage to one cask by negligence in the loading, and it was held that the defendant was not entitled to any part of the costs on the above issue, under Reg. Gen. H. 2 W. 4. r. 74., which directs that "the costs of all issues found for the defendant shall be deducted from the plaintiff's costs;" and Parke B. referred [Crompton J. Traherne v. to Cox v. Thomason (b). (a) M. & W. 483. (b) 2 C. & J. 498; 1 Dowl. P. C. 572; 2 Tyrw. 411. 1862. PATERSON V. HARRIS. (c) 8 E. & B. 161. (d) 1 Exch. 770. (e) 17 Q. B. 351. 1862. PATERSON V. HARRIS. can recover the costs he seeks, then in every action for damages the defendant will be entitled to the costs of all witnesses called by him for the purpose of cutting them down. [He cited Gray on Costs, p. 40.] Honyman, in support of the rule.-The declaration is for a total loss, and under it the plaintiff may recover pro tanto if he proves a partial loss. The test whether an issue is divisible is to see whether the portions supposed to be separate could be made the subject of different breaches. That could not have been so here; at all events, if it could, the plaintiff could have traversed each breach separately. Anderson v. Chapman (a) has been virtually overruled by Traherne v. Gardner (b), and is inconsistent with Reynolds v. Harris (c) and Freshney v. Wells (d). [He cited Goram v. Sweeting (e) and Gray on Costs, pp. 61, 64.] [Wightman J. In Day's Common Law Procedure Acts, p. 68, it is said that not possessed is divisible in trover, but not in an action for mesne profits, for which he cites Wilkinson v. Kirby (f).] COCKBURN C. J. This rule must be made absolute. I quite agree that where the question between the parties involves simply the amount of damages, and the defendant calls witnesses to cut them down, the issues raised in reference to the different items that may come under consideration are not taken distributively; but where we can see that the issues raised are distinct, the ends of justice require, and our rules do not prevent, their being so taken. Here is an action on a policy of insurance, in which the underwriter undertakes to indemnify the assured for all loss, total or partial, from the perils of the seas; and, according to the established rule, although the declaration is general, it is open to the assured to proceed in respect of either total or partial loss. The declaration being general, the plea has assumed the same shape, and denies the loss in general terms, making no distinction between total and partial loss. It seems to me that, under these circumstances, the subject matter of the liability is distinct. Even where a partial loss arises before the expiration of the voyage, there is nothing to prevent the assured from maintaining his action for it, although, no doubt, if afterwards there were a total loss, the partial loss would be included in it, and could not be recovered for separately. But here are two distinct grounds of claim, on one contract of indemnity; and, that being so, the plaintiff clearly may recover in respect of the partial loss of part of the cable arising out of one set of circumstances, and for the rest arising out of a different one. It is not alleged that there was anything in common between the two losses, except that both occurred on the ocean, one from a storm, and the other from the chemical action of the sea on the cable after immersion. The question between the parties was whether the loss of that part on which the jury found for the defendant was from the action of the sea, or from inherent defects of the cable. These are two essentially distinct causes of action and grounds of liability; and therefore we ought, if we can, to construe a plea which is an answer to the one part, though not to the other so that the defendant may have his costs of that part on which he succeeded. 1862. PATERSON V. HARRIS. 1862. PATERSON V. HARRIS. It is true that in Anderson v. Chapman (a) a contrary doctrine seems to have been maintained; but the decision of the Court there, on the special circumstances of that case, has been considerably shaken by Traherne v. Gardner (b), which is much more like the present. WIGHTMAN J. I am of the same opinion. I was at first a good deal impressed with the argument founded on the extent to which it was said our decision in favour of the defendant might be carried. It was suggested that this was an action to recover unliquidated damages, and that, if we were to decide in favour of the defendant, then, in every case where an action is brought to recover damages, the defendant might claim to be allowed the costs of witnesses produced by him for the mere purpose of cutting them down. But in the present case the record shews that the plaintiff's claim is for a specific sum in respect of a total loss of the cable. No doubt there is a difference between the recovery for a total and for a partial loss; and, although the plaintiff in the declaration went for a total loss, still here are two matters that may be distributed. The case is distinguishable from Anderson v. Chapman (a), which was for unliquidated damages. If this were such a case I confess I should have entertained much doubt. CROMPTON J. The effect of the late cases, especially Traherne v. Gardner (b), is that where an issue admits of being divided, and there are two really distinct questions before the jury, the postea ought to be made to correspond with the truth by dividing those issues. In old (a) 5 M. & W. 483. (b) 8 E. § B. 161. times, before the New Rules, questions like the present were of no consequence. Where, for instance, to an action of indebitatus assumpsit, a plea of never indebted was pleaded, and the plaintiff, seeking to recover 251., recovered only 207., he had all the costs, because the record was right; and for a long time I was of opinion with Lord Abinger in Anderson v. Chapman (a), that.the question in such cases was whether anything was due, and in the event of something being found to be due the plaintiff would succeed on the whole issue. But the later cases proceed on a different principle, and I think a right one for, since the New Rules have made particular pleadings necessary, if the plaintiff claims a large sum, and recovers only part of it, and where the matter will admit of division, I do not see why it should not be divided. Here is an action for a total loss in the ordinary form. Very early in the history of insurance law it was laid down that if the plaintiff declared for a total loss, he might recover for a partial loss; and this because the declaration must be understood to say that the ship had been totally lost, and also that it had been partially lost; and the case was the same as if there had been two counts, when the issue taken on the whole went to every part. According to Goram v. Sweeting (b), on a declaration for a total loss of ship, tackle, &c., the defendant, in order to traverse the loss successfully, must traverse the loss of every part, which shews that the issue is divisible in its nature. I agree with my brother Wightman that if this were a case of unliquidated damages it would be otherwise; but the present issue is 1862. PATERSON V. HARRIS. |